Retained EU Law (Revocation and Reform) Bill - Committee (5th Day) – in the House of Lords at 3:47 pm on 8th March 2023.
Lord Bruce of Bennachie:
Moved by Lord Bruce of Bennachie
117: Clause 15, page 18, line 38, at end insert—“(3A) Regulations under subsections (2) or (3) may not be made if they apply to an instrument, or a provision of an instrument, which is subject to an agreed Common Framework unless it has been subject to the full process agreed between His Majesty’s Government and the devolved administrations for that instrument.”Member's explanatory statementThis amendment is to probe the application of Common Framework Agreements to retained EU law.
My Lords, Amendment 117 is in my name and that of my noble friend Lady Randerson. I apologise to noble Lords that I have not spoken on the Bill so far—it is not for want of interest but because of conflicting engagements. I tabled this amendment because, although common frameworks have already been debated in Committee, I and other members of the Common Frameworks Scrutiny Committee remain concerned about the uncertainties attaching to them.
Our committee has been absolutely crucial to the progress of common frameworks, which might have somewhat run into the sand if we had not had such an active committee and energetic chair, making sure that the departments were following through. On many occasions, we pushed departments back more than once to get sufficient detail and to get them to engage in the process, in which they sometimes appeared to show a lack of interest.
I also have to say—this is a slightly more topical issue—that the process among the civil servants has been led, of course, by Sue Gray. With the departure of Sue Gray, it would be good to know who is going to take over that responsibility. I think the committee accepted that she was, in evidence that she has given to us, extremely vigorous in ensuring that at least the civil servants were engaging in it in a serious amount of detail. The commitment of Ministers has been, at best, somewhat variable.
The problem, too, is that different Administrations have had a different direction on common frameworks. In our engagement with Wales, you have an Administration who desperately want devolution to work, and to work effectively, and are frustrated that the UK Government do not appear to be quite as committed to that. In Scotland, of course, the Government do not want devolution to work, do not believe in devolution and try to pretend that Scotland is independent, claiming that any engagement from the UK Government is somehow an interference in Scotland’s sovereign right, which many of us feel fails to understand the common interest that Scotland has with the rest of the UK.
It is a fact that common frameworks have been designed to get all the relevant partners—and I know that my noble friend Lady Randerson is particularly concerned that that includes stakeholders—to be brought together to try to work out how devolution will work in a post-Brexit world, where previously the umbrella of the EU was the framework for operation. Apart from agreeing how the policies would be laid out and setting out in detail a framework, they all also had dispute resolution mechanisms: detailed and systematic mechanisms to ensure that disputes could be resolved and, wherever possible—and to date that has been the case—without even necessarily having the engagement of Ministers.
In many ways, we have been impressed by those processes, which could apply outside common frameworks much more widely. The remaining flaw in all that, of course, is that the ultimate final appeal rests with the UK Minister and, on occasion, it seems that UK Ministers, knowing that to be the fact, are less engaged with the concerns and anxieties of the devolved Administrations—and I would suggest that that really has to stop.
Before this Bill came along, we had the internal market Bill—now Act—which also cut across common frameworks. Fortunately, the noble and learned Lord, Lord Hope, secured an amendment in this House to allow for divergence opt-outs to be agreed, albeit at the discretion of UK Ministers. That has been used in the case of single-use plastics, but I suggest that UK and Scottish Ministers have rather stumbled in relation to the deposit return scheme. The Secretary of State for Scotland, Alister Jack, said that he was minded to reject the scheme, but did so before it was revealed that the responsible Minister in the Scottish Government, Lorna Slater, had not even asked for a departure. I suggest that the Secretary of State was overeager and that she was rather behind the curve—the net result being that we are still in some degree of confusion.
In the leadership contest that is going on north of the border, one candidate has implied that somehow UK Ministers are itching to overturn devolution decisions by Ministers at every twist and turn. I genuinely do not believe that to be the case, but it is genuinely important that the UK Government do not give the impression that that is the case and that they recognise that they have to tread with respect and carefully in trying to ensure agreed and respectful decisions sometimes to differ.
I come to my final point. Having had that Bill, we now have this Bill and a total lack of clarity—apart from the fact that the Bill is totally devoid of clarity in any case—as to how any decisions that Ministers might make could impact on these common frameworks, not all of which have been completed but which, thanks to the committee, have been worked through, painstakingly and in considerable detail, to make sure that devolution can proceed in a constructive, fair-minded way, with proper ways of resolving disputes and taking decisions beforehand.
The purpose of this amendment is to seek clear reassurance that the Government will not proceed with measures under this Bill that cut across common frameworks and, in particular, the dispute resolution mechanisms within those frameworks. It is a very simple proposition and one that I think the Minister ought to be able to accept. I beg to move.
My Lords, my Amendment 118 brings us, once again, to the issue of devolution, the powers of the devolved legislatures and the protection of those powers by legislative consent Motions.
I have spoken to a number of amendments in Committee and expressed my concerns about the way that confidence in the Sewel convention has been eroded over the last few years and how legislative consent Motions have been degraded and disregarded. At each stage, the Minister has sought to reassure me that my fears for the future of our devolved settlements are unfounded but, as I have said before, our experience often tells us a different story. I have therefore tabled Amendment 118 to Clause 15, seeking to ensure that a legislative consent Motion be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to revoke or replace secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.
Three of your Lordships’ committees have published reports that have included criticism of Clause 15; the issues that they have highlighted are serious and deserve to be debated. The Delegated Powers Committee has recommended that Clause 15 be removed from the Bill because it
“contains an inappropriate delegation of legislative power”.
It says that Clause 15 is
“the most arresting clause in the Bill for its width, novelty and uncertainty.”
Why is this clause arresting? It gives Ministers extraordinarily wide discretion in relation to thousands of secondary EU laws; for example, one option under this clause allows Ministers, as the committee says,
“by regulations to … revoke any secondary REUL and make such alternative provision as Ministers consider appropriate, including with completely different objectives.”
This is, the report says,
“a power to do anything Ministers wish to do” with retained EU law until 2026.
I appreciate that the Minister has spent time in Committee reassuring me and other noble Lords that the powers of the devolved legislatures are not under threat. I would like to believe that he believes what he says but can he explain, if this clause were to pass, how certain I could be that some other Minister would not use it to make regulations to revoke or replace any piece of secondary EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature?
Ministers will have the power under this part of Clause 15 to do anything, so who or what will stop them acting in devolved areas if they so choose? We received a letter this morning from the noble Baroness the Minister, and I am sure that she or the noble Lord the Minister will summarise the points it contains in their response in relation to these powers.
Your Lordships’ Secondary Legislation Committee is so concerned about the powers given to Ministers in Clause 15, as well as Clauses 12 and 13, it recommends that an enhanced scrutiny mechanism should apply to the exercise of powers under these clauses. This mechanism would allow either House to modify an instrument and would, I think, receive a welcome from noble Lords. Will the Minister inform the Committee of the Government’s response to the concept of an enhanced scrutiny mechanism for these clauses?
Your Lordships’ Constitution Committee deals specifically with devolution in part of its report on the Bill. It highlights one the problems with the Sewel Convention:
“At present when the Government considers consent is not required from a devolved legislature and proceeds to give effect to this view, there is no parliamentary scrutiny of that determination.”
We have seen this situation time and again in Wales. The UK Government provide a list in a Bill to inform us where they are seeking consent; the devolved legislatures examine the Bill and point out that their consent is needed in certain other areas too; the devolved Administrations produce an LCM saying that consent is required in those areas and that they withhold consent; and the UK Government ignore the LCM. That is the end of the process. There is no scrutiny and no holding them to account for their decision to override the powers of the devolved Administrations. The Constitution Committee therefore recommends that, in future,
“the Government should justify its approach to the House at the beginning of a bill’s consideration. In the case of this Bill, it should do so at the earliest opportunity.”
Will the Government accept the committee’s recommendation and commit to justifying their approach to this aspect of consent in this Bill and in future Bills?
I am grateful to all three committees for their careful and expert analysis of the Bill and for their recommendations. I thank them for their support of democratic principles and their defence of the devolved legislatures and their powers.
I turn briefly to Amendments 135 and 143 in the name of the noble and learned Lord, Lord Hope of Craighead. I am grateful for the support he shows for the devolved legislatures and value greatly his expertise in the legal issues surrounding their powers. His amendments have my full support.
My Lords, I will speak in support of the two amendments I submitted, along with the noble Baroness, Lady Suttie. Amendments 119 and 127 would ensure that substantial policy change with regards to human rights, equality or environmental protection in Northern Ireland may not be effected or take place via the exercise of delegated powers.
Last Thursday, I referred to the importance of protocol Article 2, which deals specifically with equality and human rights considerations in Northern Ireland. I have had several conversations, as has the noble Baroness, Lady Suttie, with the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. They are concerned by the breadth of delegated powers provided under the Bill and the potential for the inadvertent breach of protocol Article 2 or the wider diminution of human rights, equality and environmental considerations via ministerial action, or inaction, in the absence of detailed parliamentary scrutiny. I ask the Minister whether that will be the case. What mitigations will be in place to ensure the protection of protocol Article 2?
The tight deadlines of the restatement of REUL by the end of 2023 and assimilated law by 2026, and the scale of the task to be achieved in that time, create a risk of gaps in legislative coverage. It may also contribute to further uncertainty and a potential breach of Article 2 if REUL essential to the no diminution commitment is not preserved or restated with set deadlines. A general convention on this principle was enunciated by the Constitution Committee, which reported in 2018 that
“we have identified a number of recurring problems with delegated powers. We have observed an increasing and constitutionally objectionable trend for the Government to seek wide delegated powers, that would permit the determination as well as the implementation of policy.”
That begs the comment that not much has changed in five years.
The Bill gives effect to a significant body of policy relating to human rights and equality, including employment legislation and EU regulations providing for the rights of disabled people, much of which will fall unless preserved or restated by Ministers. Under Clause 15(1), to which Amendment 119 refers, Ministers may revoke secondary REUL without replacing it, creating potential policy change with limited scrutiny. In addition to being given powers in subsection (2) to replace secondary REUL with provisions with the same or similar objectives, Ministers are also given significant additional powers to replace REUL with alternative provisions in subsection (3), which is of particular concern.
Problems will emerge in exercising these powers, as Ministers are not under a duty to consult on the REUL that is being replaced. Even though the powers granted are time-limited, both the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission believe that they are too widely drawn and will provide insufficient scrutiny, potentially leading to conflict with obligations under Article 2. Our Amendment 119 to Clause 15 would curtail the powers to revoke or replace secondary retained EU law affecting human rights or equality protections in Northern Ireland to ensure continuing adherence to the UK constitutional convention of providing for policy change via primary legislation, with technical and operational detail addressed in subordinate legislation.
Ministers need to engage with stakeholders, including both commissions, and human rights and equality organisations before using delegated powers to replace REUL. Will the Minister give an assurance that that will happen? I know that the noble Baroness, Lady Suttie, will refer to this issue, but will the Minister undertake to meet representatives of both commissions in Northern Ireland to discuss this issue further and help assuage their concerns?
Our Amendment 127, relating to Clause 16, provides for powers to be granted to Ministers to modify and amend REUL and restate or assimilate law or provisions replacing REUL as they consider appropriate to take account of changes in technology or developments in scientific understanding. The use of this power is subject only to the negative procedure, so changes made under it may not require active parliamentary approval. This power will not be time-limited. Our Amendment 127 seeks to ensure that the delegated power to modify legislation may be used for dealing with minor and technical matters only.
I have two questions for the Minister. First, will he meet with both commissions? Secondly, can he provide assurances today that the delegated powers in the Bill to modify legislation will be used to deal with minor and technical matters only, and that any substantive policy change to the law in Northern Ireland, including to human rights and equality law, will be made via the primary legislative process?
We must not forget that both commissions were set up under statute to manage Article 2 of the protocol, which deals specifically with equality and human rights and goes back to the Good Friday agreement. Can the Minister set out what consideration was given to ensuring compliance with Article 2 in the development of this Bill, and ensure that there will be no detrimental impact on the precious commodity of devolution in Northern Ireland or our special arrangements in Northern Ireland under the protocol and the Windsor Framework?
My Lords, I rise to speak briefly to Amendments 119 and 127, to which I have added my name. Like my noble friend Lord Bruce, I apologise to the Committee: for a variety of reasons I was unable to attend the previous debates on devolution. The noble Baroness, Lady Ritchie of Downpatrick, has given detailed background to these amendments and made a powerful set of arguments in favour of them. I just want to re-emphasise a couple of the points she made.
As the noble Baroness said, these two amendments would ensure that no significant policy changes relating to human rights, equality or environmental protection in Northern Ireland could be implemented through the use of delegated powers. As it stands, the Bill does not give enough consideration to the very particular set of circumstances faced by Northern Ireland. There are multiple layers of existing international commitments through the Good Friday/Belfast agreement, the Northern Ireland protocol and now the Windsor Framework, and it is not entirely clear to me how all these commitments will fit in with the Bill and which will take precedence.
The Minister will be aware that, as the noble Baroness, Lady Ritchie, set out clearly, the Northern Ireland Human Rights Commission has expressed strong concerns about the sheer number and scope of delegated powers provided for in the Bill and the potential impact of the protocol on Article 2, which guarantees “no diminution” of certain human rights and equality protections. As the noble Baroness spelled out, the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland are deeply concerned that the Bill as drafted may accidentally or otherwise result in breaches of Article 2 of the protocol. Article 2 touches on a range of equality and employment rights protections that could be unpicked, not least because it is open to a certain degree of interpretation.
These concerns about the potential impact on Northern Ireland are exacerbated by the continuing absence of an Assembly or Executive in Northern Ireland. A functioning Executive and Assembly would have provided an additional layer of oversight and scrutiny in safeguarding Article 2 of the protocol. As a result of the lack of a Northern Ireland Executive, the Northern Ireland Civil Service is already extremely stretched. The Bill will almost certainly impose an extra set of burdens on it, not least given the unrealistic timescales involved.
I strongly support the request from the noble Baroness, Lady Ritchie, that the Minister meet representatives of the Northern Ireland Human Rights Commission in order to hear at first hand their very real concerns. I look forward to hearing the Minister’s response.
My Lords, my noble friends Lord Bruce, Lady Suttie and Lady Humphreys have explained the different approaches and situations of the devolved Administrations, thereby demonstrating the need for a sensitive approach from Ministers. I particularly welcome the reference by the noble Baroness, Lady Ritchie, and my noble friend Lady Suttie to the application of the Bill in Northern Ireland. Because of the situation there, we discuss the Administration far too infrequently, and that issue needs to be addressed.
On Amendment 117, to which I have added my name, I am very grateful to the Minister for his recent letter which specified that any REUL to be extended will need to be specified by its full title or by “specifying a description”. That phrase is not defined in the Bill, which means it is another thing that has been left to the judgment of Ministers; indeed, the Minister’s letter actually uses that phrase, saying that it will be left as “a judgement for Ministers”. It says that this description
“could encompass a description of legislation in scope of the Common Frameworks” and gives the example of common frameworks relating to food and feed safety. That is extremely helpful information for those of us who have been members of the Common Frameworks Scrutiny Committee for some years.
By logical progression, am I right to assume that Ministers could decide to include all common frameworks in one umbrella description in the Bill, or to provide a list of all the agreed common frameworks? Surely, that is the logical conclusion. There are very good reasons to do that. First, it would end the unnecessary uncertainty caused by the Bill and the economic damage it is doing to industries in Britain. Secondly, there can be no clusters of legislation that have been more thoroughly and comprehensively—and very recently—looked at than those subject to common frameworks. They have been subject to scrutiny by all four nations of the UK and by a wide variety of stakeholders. All those clusters have been deemed by the UK Government and by the Administrations in the devolved nations to be up to date and fit for purpose. The Minister has said that that was the reason why some legislation might need to fall, and we would all understand that, but it does not apply to the legislation subject to common frameworks. If something unforeseen arises, there is a mechanism to resolve disputes.
There is no doubt that this legislation is not fit for purpose. The UK Government have nothing to fear because they have the last word on common frameworks and have led the process of establishing them. So I urge the Minister to table amendments on Report that clarify the future place of common frameworks and that specify which ones will be exempt from the sunset.
I have one other thing to probe. In his letter, the Minister used the example of food safety legislation. The extensive catalogue of this has grown since the 19th century. Back then, lead was put in Red Leicester cheese to make it red, copper was put in butter to make it yellow, and chalk and water were put in milk to make it go further. Even if the food was kept in normal circumstances, those normal circumstances were often so poor that it went off and made people seriously ill or killed them. We have moved on from that to a vast catalogue of food safety legislation, but we are still nowhere near perfection or peak knowledge on food safety. Our understanding improves all the time. Recently, there has been research showing that there are plastic particles in bottled water. That is something that we did not understand a couple of years ago. We do now.
Can the Minister tell us how further regulations on food and upgrading regulations on food will be viewed by the Government? Will it be regarded as an additional burden on business? Will it be regarded as increasing regulatory burdens and therefore be excluded by the Bill? If we are not allowed to update our legislation, surely we will lag behind. We will be the country that still has the substandard plastic bottles, just as we would be the country with cars that are less fuel-efficient and toys that are more dangerous, to take examples from earlier debates.
On Amendments 135 and 143 in the name of the noble and learned Lord, Lord Hope, which I support, I refer to the fourth report of the Procedure and Privileges Committee, which followed up on the Constitution Committee’s report of January 2022. That report recommended that we in the House should give greater prominence to legislative consent Motions. The Procedure and Privileges Committee has now agreed to a very welcome and comprehensive process for reporting the decisions of devolved Administrations on LCMs and situations where the UK Government have not sought consent but the devolved Administrations have given or withheld it. This is significant because, as my noble friend has said, in the last few years there has been a huge erosion of the 1998 decision that the UK Government would not normally legislate in matters within the competence of a devolved parliament without its consent. It used to be the case that the Government went to enormous lengths to take the Sewel convention into account. That has been eroded, to the great detriment of good relationships across the UK. This Bill does nothing to improve relationships.
I fully support those amendments tabled by the noble and learned Lord, Lord Hope, which seek to restore a small part of the devolved powers that have been undermined by the Government in recent years. Those amendments and the recent decisions of the Procedure and Privileges Committee will make it more difficult for us to remain unaware of the views of the devolved Administrations.
My Lords, I will add a brief word on two of the amendments, because I agree with everything that has been said but do not wish to prolong the debate. I wish to say something about Amendments 135 and 143 as, in my view, they go to the spirit of the union. I know that the noble Baroness the Minister has done much to try to ensure that we are governed in a union where there is respect and equal treatment. I thank her very much for that. I also welcome the attitude of the Prime Minister, which is in complete contrast to that of the last but one Prime Minister.
The spirit of the union is encapsulated in both these amendments. First, on Amendment 135, if something is devolved, please get consent. That seems a matter of ordinary courtesy that strengthens the union. It is not a big ask. Secondly, on Amendment 143, why should the Welsh and Scottish Ministers not have the same powers? The answer was given by the noble Lord the Minister to a similar question I raised. Although the Government may not say what they are going to do, I very much hope that they look at these amendments as showing a determination to govern our union in the spirit of co-operation, equality and respect.
My Lords, I support this group of amendments, particularly, as a member of the Common Frameworks Scrutiny Committee, Amendment 117, which tries to tease out the application of common framework agreements to retained EU law and how they will be impacted by the Bill. These frameworks work right across the devolved Administrations, as noble Lords have said, and are underpinned by retained EU law. As my noble friend Lady Andrews has said during Committee, that underpinning is a cat’s-cradle of hundreds if not thousands of complicated and interrelated SIs. How much instability will the Bill, and its obvious legal uncertainties, bring to the common framework agreements between the devolved Administrations?
The noble Baroness, Lady Neville-Rolfe, wrote to the noble and learned Lord, Lord Thomas—and to all of us, in fact—to answer several questions. We appreciate that. One of the questions was on methodology. What competence do the UK Government have to affect the methodology of seeking retained EU law within the devolved Administrations?
I rise briefly to follow the noble Baronesses, Lady Ritchie and Lady Suttie, on Amendments 119 and 127. I thank them for casting a spotlight on the situation for Northern Ireland, which is now more complicated than ever. As was said by the noble Baroness, Lady Suttie, there is a danger of a change inadvertently being made.
In the Minister’s response, could she clarify the situation pertaining to the law in Northern Ireland? We have laws that will be affected by this legislation, as it will disapply whole swathes. As the noble Baroness mentioned, this will pose a great burden on the Civil Service and could lead to a situation at the end of the year when it is not clear who is responsible for making change. If the Assembly is not restored, it is likely to lead to Ministers here having to step in, in a considerable number of areas.
I do not expect a full answer in this Chamber today, but at some point it would be helpful for the Minister to write to us, and place a copy of that letter in the Library, to set out which laws pertaining to Northern Ireland are affected by this legislation and which are exempted because of the necessity that they remain to give effect to the provisions of the withdrawal Acts or to implement the Northern Ireland protocol. Which laws then apply directly to Northern Ireland as a result of annexe 2 to the protocol—the 300 areas of law?
Then we have the body of laws which have been applied —hundreds of regulations—under the dynamic alignment since the 300 areas of law became statutory law in Northern Ireland: perhaps we could have a list of those. Then, perhaps—and I say this more in hope than expectation—we might get a list of the laws, said to comprise 1,700 pages, which will be disapplied as a result of the Windsor Framework.
Now, it is a very complicated picture, and that is before we come on to legislation passed here applying to Northern Ireland and legislation passed by the Northern Ireland Assembly. It would help if the Government were able to set that out, and there is no reason why they should not be able to. If they have counted 1,700 pages that are disapplied by the Windsor Framework, they must be able to tell us what they are. If they tell us that 3% of EU laws continue to apply to Northern Ireland, they must know what those laws are and what the percentage figure was under the old protocol. We will eventually find all this out; I just do not understand why they are reluctant to spell it out. So I just make a plea for that information to be provided, so that all your Lordships can consider these matters very clearly in the round. I thank the noble Baronesses for tabling these amendments.
My Lords, I do not want to prolong the Committee, so I will not repeat many of the contributions that have been made today. But I do want to pick up the point of the noble and learned Lord, Lord Thomas, because when he raised this in a previous clause on a previous Committee day, I also asked a supplementary question. The reply I got from the Minister—I was seeking an assurance—was that
“there is a power for them to just restate that law, to continue it, if they wish to do so. We would want any extension to be discussed between the Administrations”—[
Well, the simple question is this: why, on an issue of law that is the sole competency of the devolved Administrations, do they not have the same power as the Secretary of State? I think it is a fundamental question. The noble Lord, Lord Callanan, said:
“I do not agree with the noble Lord’s characterisation. If they wish, it is perfectly possible for them, before the sunset date, to renew that legislation. The extension mechanism is of course something that we will discuss with them as appropriate”—[Official Report, 2/3/23; col. 473.]
If the noble Baroness, in responding to this, cannot give a clear answer to what I believe is a clear question, I hope she will write to us, because I cannot see any reason why we would undermine the authority of the devolved parliaments in this way.
I will also, because it has come up in terms of the implications of divergence, repeat the question that the noble Lord, Lord Moylan, raised in another debate. He said that there were “profound implications” for paragraph 52 of the framework, which states that
“the Office of the Internal Market (OIM) will specifically monitor any impacts for Northern Ireland arising from relevant future regulatory changes”.
The noble Lord, Lord Moylan, asked
“what the purpose of that is, and what weight the Government are going to give to the results of such monitoring?”—[
Of course, when you read the framework, you also see that that is mirrored in terms of a response by the EU. So I hope the Minister will be able to answer these questions: what are the implications? Has this been thought through? What assurances were given to the EU by the Prime Minister? Those are important questions for us to consider.
I appreciate my noble friend Lady Ritchie’s amendments. In looking at them, I thought that I would not only take on board the comments made in letters from the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland but would read the commissions’ annual reports, which the Government would obviously have. Of course, the overarching recommendation of the commissions’ most recent 2022 annual report is that
“in the development of any laws or policies the UK Government and NI Executive consider the extent to which any change engages Protocol Article 2 and ensure that there is no diminution to the rights and safeguards which fall within its scope”.
I hope the Minister will address that specific recommendation in relation to this Bill.
On the divergence of rights on the island of Ireland, the commissions recommended that
“the UK Government and the NI Executive ensure North-South equivalence, by keeping pace with changes to equality and human rights law, arising as a result of EU laws introduced on or after 1 January 2021, that enhance protections. This should include rights introduced as a result of EU laws that do not amend or replace the Protocol Annex 1 Directives.”
What consideration have the Government given to that particular recommendation, bearing in mind that Article 2 is a firm foundation of the relationship on all sides on the island of Ireland?
I conclude by saying that, on retained EU law, the commissions recommended that
“no change to retained EU law be made which would weaken Protocol Article 2, its enforceability or oversight mechanisms”.
Again, can the Minister tell us what assessment the Government made of that recommendation when drawing up the Bill? The commissions also recommended that,
“when making any change to retained EU law, the relevant UK or NI Minister confirms that an assessment for compliance with the commitment in Protocol Article 2 has been undertaken and that there is no diminution of the rights, safeguards and equality of opportunity as set out in the relevant part of the Belfast (Good Friday) Agreement as a result of the UK leaving the EU”.
Has that assessment taken place? What are the implications for the powers outlined in both the clauses under consideration in this group? If the Minister is unable to answer today and give a full account of these particular recommendations, I would be grateful if she could write and put a copy of her letter in the Library for everyone to see.
My Lords, I am grateful to all noble Lords who have contributed to this important debate. Amendments 117 to 119, 127, 135 and 143 seek to amend the way in which the powers operate in areas of devolved competence. I should say at the outset in response to the query about Sue Gray leaving her post, it is really not my place to comment on Civil Service appointments, but the work that her team does will not stop just because she has moved on. There was a competent team around her, and I am sure more announcements will be made in due course.
Amendment 117 exempts legislation relating to common frameworks from the powers under Clause 15(2) and (3) to replace revoked REUL unless relevant instruments or provisions have been subject to the full process between the UK Government and the devolved Administrations. This would prevent the powers being able to operate on these instruments to create replacement provision unless a process agreed between the UK Government and the devolved Governments is followed. Common frameworks are integral to managing regulatory divergence in the areas they cover and provide a flexible governance tool for the UK Government and the devolved Governments. I reassure the noble Lord, Lord Bruce of Bennachie, that the UK Government value the committee’s work and regard it as essential to ensure that the common frameworks are as good as they can be, including by helping to ensure the functioning of the UK internal market.
Retained EU law is in scope of the common frame- works. This includes not just REUL operating within devolved competence but that same REUL operating in England. In some cases, this REUL will be UK-wide. This is a point I have made in earlier debates on this subject.
The Government believe that it is simply not necessary to carve out REUL in scope of common frameworks from the powers to revoke or replace. Common frame- works are purposely designed to manage any potential divergence which may result from the Government’s use of the powers in the Bill. When using the powers in the Bill, we will use common frameworks to engage with the devolved Governments on decision-making across the UK. The UK Government and the devolved Governments agree that where common frameworks are operating they are the right mechanism for discussing REUL reform in the areas they cover.
To respond to the question asked by the noble Baroness, Lady Randerson, about extending the sunset applicable to REUL within the scope of common frameworks, it will be possible to extend REUL within the scope of common frameworks as the Clause 2 power enables extending the sunset for specified instruments or descriptions of legislation. In response to her queries around exemptions for food, there is simply no need to have specific exemptions or carve-out areas in the Bill. As I outlined earlier, the common frameworks are purposely designed to manage any potential divergence which may result from the Government’s use of the powers in the Bill.
Amendments 119 and 127, tabled by the noble Baroness, Lady Ritchie of Downpatrick, would restrict the use of the powers to revoke or replace and the power to update by requiring that any new regulations must not bring about substantial policy change for regulations relating to human rights, equality or environmental protection with effect in Northern Ireland. First, I emphasise that the Government recognise the unique challenges that Northern Ireland departments are facing in delivering plans for the reform of retained EU law in the continued absence of the Northern Ireland Executive and Assembly. Our officials are working closely with the Northern Ireland Civil Service and the UK Government are committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations.
Responding to the noble Baroness’s point about Article 2, as outlined by my noble friend Lord Callanan in the debate on assimilation last Thursday, I can assure the noble Baroness that the Bill provides powers to restate rights and obligations required for Article 2 of the Northern Ireland protocol as needed. The Government will ensure that all necessary legislation is in place by the sunset date to uphold commitments made under Article 2. Departments will take into account the assessment of whether a restatement would meet the Article 2 non- diminution right when reviewing their retained EU law.
I turn to the delegated powers in the Bill. The Bill sets out the circumstances under which the powers can be used appropriately. The powers to revoke or replace are important, cross-cutting enablers of REUL reform in the Bill and will allow the Government to overhaul EU laws and secondary legislation, while the power to update is intended to facilitate technical updates to keep pace with scientific and technological developments over time. The REUL dashboard has identified more than 3,700 pieces of retained EU law, many of which are unduly burdensome and not fit for purpose. It is therefore necessary to have broad, forward-leaning powers capable of acting on wide-ranging REUL across different policy areas. Furthermore, we fully intend to maintain the UK’s leading role in the promotion and protection of human rights and equality, and environmental protections. We are proud of our long and diverse history of freedoms and are committed to ensuring that the UK’s international human rights obligations continue to be met.
The provisions within the Bill, including the powers, are not intended to undermine these hard-won human rights or equality legislation, nor our world-leading environmental protections, which this Government have also committed to uphold. The UK is a world leader in environmental protection, and we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes.
Amendment 118 seeks to prevent Ministers of the Crown exercising the Clause 15 powers in devolved areas entirely unless legislative consent is granted. This requires that the powers to revoke or replace cannot be used on retained EU law or post-2023 assimilated law within areas of devolved competence to create replacement provision, unless the relevant legislature has provided legislative consent on that particular instrument. Amendment 135, tabled by the noble and learned Lord, Lord Hope of Craighead, places a similar consent requirement on the use of concurrent powers when exercised by a Minister of the Crown in devolved areas.
The majority of the powers in the Bill will be conferred concurrently on the devolved Governments. This will enable them to make active decisions regarding their retained EU law within their respective devolved competences and provide them with greater flexibility. The concurrent nature of the powers is not intended to influence decision-making in devolved Governments; rather, it is intended to reduce additional resource pressure by enabling the UK Government to legislate on behalf of a devolved Government where they do not intend to take a different position.
However, the edges of where UK government competence ends and devolved competence begins for retained EU law are not always clear. Therefore, it is essential that UK Ministers can make provision in devolved areas to ensure that nothing important falls between the reserved and devolved areas. It is hoped that this will ensure that the most efficient and appropriate approach can be taken in every situation.
The Government therefore believe it is not necessary to limit the use of the powers within devolved areas by requiring legislative consent. It is pivotal that there are no impediments to or delays in delivering this much-needed retained EU law reform. Furthermore, having a delay to seek consent from devolved Ministers will make it much more difficult for the regulations required for retained EU law reform to be laid before the sunset date.
Lastly, Amendment 143 confers the power to make transitory, transitional and savings provision on Scottish and Welsh Ministers. This standard power is in connection with the bringing into force of provisions in the Bill and is commonly included in Bills. It will ensure a smooth transition of affairs under the law as it currently stands and the law as it will stand after the provisions of the Bill come into force. As currently drafted, this power is conferred on a Minister of the Crown only, as is standard practice for this power. However, UK Ministers will be able to make provisions on behalf of the devolved Governments where appropriate.
As I have set out above, none of the provisions within the Bill, including the powers, affect the devolution settlements, and nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments. Indeed, the Government remain committed to continuing discussions with the devolved Governments to ensure that the most efficient and appropriate approach to REUL reform can be taken in every situation in a way that works and provides certainty for all parts of the UK.
For the reasons outlined, I therefore ask the noble Baroness, Lady Randerson, to withdraw her amendment. I promise to write to the noble Lord, Lord Collins. There were a number of questions there and I think they demand a full response, so I would rather write in due course.
I have listened carefully to the Minister’s response. When I spoke earlier, I said that the letter from the noble Lord, Lord Callanan, was very helpful, but I have not had a specific answer, taking my example of fragments of plastic in bottles of water, as to whether the Government would respond to that requirement for change in food and food safety legislation. Would the Government regard it as a technical advance, which the Minister referred to, or as unduly onerous regulation, which she also referred to? What would happen if, for example, the Welsh Government decided they wanted to go to a higher standard of plastic in water bottles but the UK Government decided they did not want them to go to that higher standard? If the Minister cannot answer that now, could she give us a commitment to write with that worked example and give us an indication of what is unduly onerous EU-based legislation and regulation and what is technical advance?
I am happy to write if I do not give a satisfactory answer now. It is up to the relevant department to look at the proposed amendment and consider whether it meets the criteria for the use of the update power. The Government will always maintain the power to increase standards. Any more than that I will take back, and I will write in fuller detail.
Can the Minister inform the House what the criteria are?
If the noble Lord is talking about the Clause 15 power, that gives discretion to Ministers. It is the criteria for the use of the update power, which is at the discretion of Ministers.
I think the noble Baroness was talking about adding to the burden of legislation, which is Clause 15.
On a different point, I thank the Minister for the assurances that she has provided us with in relation to Article 2 of the protocol, but could she also indicate whether she is prepared, if required, to meet both commissions? I understand that one commission is responsible to the Northern Ireland Executive and the other directly to the UK Government. Would that be possible? Maybe in the fullness of time, if the Minister wants to reflect on that request, she could provide us with an answer in writing.
Certainly, more relevant Ministers will be meeting all the time, as well as officials, to discuss these issues, and they are probably the best and most appropriate channels of communication.
My Lords, this has been an interesting debate covering a number of topics. I welcome the Minister’s assurances, which I accept in good faith, about wanting to work constructively with the devolved Administrations. However, I am sure she will recognise that there are still a lot of questions hanging in the air.
To take the point made by the noble Lord, Lord Dodds, if the Government know that there are 3,700 pieces of legislation then they ought to be able to tell us what they are. The impression one gets is that the Government claim they know exactly what they are doing but are not prepared to tell anyone else what it is. We need to get a little further down the road on that.
The Minister said that some of the laws were no longer fit for purpose, and we need to know which those are; others need to be updated, and we need to know which those are; and others are UK-wide. Well, the devolved Administrations still need to know which they are, because, clearly, they have an impact throughout the United Kingdom.
This debate has been useful, but there are still issues that we need to press the Government on. In the meantime, I beg leave to withdraw the amendment.
Amendment 117 withdrawn.
Amendments 118 to 122 not moved.
Amendment 122A had been withdrawn from the Marshalled List.
Amendments 123 to 125 not moved.
Clause 15 agreed.